MARTINEZ v. [And Another Action].

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Supreme Court, Appellate Division, First Department, New York.

Michael MARTINEZ, etc., et al., Plaintiffs-Respondents, v. The CITY OF NEW YORK, et al., Defendants, The New York City School Construction Authority, Defendant-Appellant. [And Another Action].

Decided: October 30, 2001

NARDELLI, J.P., ANDRIAS, SAXE and MARLOW, JJ. Tania M. Pagan, for Plaintiffs-Respondents. Cynthia A. Holfester, for Defendant-Appellant.

Order, Supreme Court, New York County (Marcy Friedman, J.), entered August 29, 2000, which, insofar as appealed from, denied defendant-appellant New York City School Construction Authority's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Issues of fact exist precluding summary judgment in appellant's favor.   Such factual issues include whether it knew or should have known that children would be exiting the school on steps close to the scaffold it had constructed for the purpose of window replacement;  whether the scaffold was inherently dangerous due to the absence of any barricade that would have prevented the children from gaining access to it from the steps;  whether defendant had notice of a prior accident involving a student on the scaffold;  and whether plaintiff's attempt to jump from the steps to the scaffold was foreseeable and/or the sole proximate cause of his injuries (cf., Pena v. Schur, 245 A.D.2d 206, 665 N.Y.S.2d 898, lv. denied 91 N.Y.2d 811, 671 N.Y.S.2d 715, 694 N.E.2d 884).